E-cigarettes and vaping have received a very mixed reception in New York.  While the multiplying number of vape shops and booming e-cigarette sales would suggest a surefire rise for the industry in our State, growing opposition from the public and multiple levels of government could nip the industry in the bud.

In 2017, Governor Cuomo signed into law an amendment to the Clean Indoor Air Act prohibiting the use of e-cigarettes and vaping products in any setting where the smoking of traditional tobacco products is prohibited. See Public Health Law §§ 1399-N, 1399-O.  This includes most indoor settings as well as certain outdoor, public and work places.  Today – in response to growing public concern over health effects and teenage addiction to vaping products – the State is now considering a ban that would strictly regulate all but a few of the available “vape juice” flavors (particularly, kid-friendly flavors like bubblegum, breakfast cereal, and cotton candy) in an effort to make vaping less attractive to young consumers.  See, Brodsky, Robert “LI vape shops would close, some say, if NY bans flavored e-cigarettes”, Newsday, Nov. 9, 2018.

At the local level, a growing number of Counties across the State, including Nassau and Suffolk Counties, have raised the minimum age for the purchase of tobacco products (including e-cigarettes) from 18 to 21.  The Town of North Hempstead also recently joined that list.   See Town of North Hempstead Code § 54-1 (2017). Certain counties, like Suffolk County, are also currently weighing options for enacting their own restrictions on the sale of flavored vaping products. See Tyrell, Joie “Rally backs bill to limit flavored e-cigarettes in Suffolk County” Newsday, December 13, 2018.

Based on these trends, it is unsurprising that government at the most local level, towns and villages, are also utilizing their police powers to join in the fight against e-cigarettes and vaping.  On Long Island alone, numerous towns and villages have enacted local controls on the use of vaping products and the locations where they may be sold.  Some municipalities have acted in a limited sphere by prohibiting the use of e-cigarettes and vaping products on or in the vicinity of public property (i.e. parks and government buildings) and in proximity to schools and places of worship. See Town of Hempstead Code § 78-3.2 (2018); Village of East Hampton Code § 211-17 (2018).  Others have turned to their zoning power to remove establishments selling e-cigarettes and vaping products from their downtowns and commercial centers. See Town of Babylon Code §§ 213-129.1, 213-166, 213-166.1, 213-490 (2018); Town of Islip Code § 68-341.1 (classifying “vape lounges” and “vape shops” as adult uses and permitted only in the Industrial 1 District) (2016); Town of Smithtown Code § 322-30.5 (2018) (prohibiting vape stores and lounges within 1,500 feet of parks, playgrounds, schools and religious uses); Village of Floral Park Code § 99-18 (2018) (classifying vape shops as adult uses permitted only in the B-3 Business District).  One village has enacted an outright ban on the sale of vaping products in its business districts. See Village of Lindenhurst Code § 193-92 (2017).

Proponents and purveyors of e-cigarettes and vaping products are decrying the mounting regulations governing the industry and some are now attempting to push back. See Rowland, Matt “Using ‘family-friendly’ excuse, Lindenhurst, NY wants to ban vape shops” Vapes.com, October 4, 2017.  A quiet town in suburban Westchester County could be the test case on whether a local zoning ordinance in our State aimed at e-cigarettes and vaping products is a valid exercise of a local government’s land use power.

In May, 2018, the Town of Bedford, New York, adopted Local Law No. 5 of 2018, which enacted 125-29.8 of the Town Code, regulating “electronic nicotine delivery systems”.  Citing public health and safety concerns, the law confines “vape shops” to the Town’s Roadside Business (RB) Zoning District, which is situated in one area of the Town.  The law goes one step further to prohibit the sale of electronic nicotine delivery systems (i.e. e-cigarettes and vape pens) at any business outside the RB Zoning District, regardless of the principle use of the property.  See Town of Bedford Code § 125-29.8(C)(3) (2018).

It has since been reported that a group of gas station owners and operators in the Town of Bedford (located outside the RB Zoning District) have filed suit against the Town, challenging the legality of the 2018 zoning amendment.  See McKinney, Michael P. “Several gas businesses sue Bedford over law restricting e-cigarette sales” Rockland/Westchester Journal News, December 19, 2018.  If lawsuit goes forward, it will be one of the first (if not the first) challenging a local zoning enactment targeting e-cigarettes and vaping.  The outcome of the action will, therefore, be of tremendous interest to supporters and opponents of vaping alike.

At the end of the day, e-cigarettes and vaping products are already in the market place and have proven themselves to be profitable.  Therefore, in the opinion of this writer, it is unlikely that they will be banned in New York completely.  After all, traditional cigarettes and tobacco products continue to be sold in convenience stores and other businesses throughout the State despite the now widely known and accepted health problems they cause.  And like “Big Tobacco”, the purveyors of this generation’s e-cigarettes and vaping products may simply need to come to terms with strict regulatory requirements and negative social opinion as the price of doing business in New York (and elsewhere).  We will all just have to wait and see.

 

The New York State Department of Environmental Conservation (NYSDEC) is proposing significant revisions to its State Environmental Quality Review Act (SEQR) Handbook to conform with recently-adopted amendments to the SEQR regulations. These amended regulations became effective in January 2019. The proposed changes to the SEQR Handbook are available at http://www.dec.ny.gov/docs/permits_ej_operations_pdf/dseqrhandbook.pdf.

One of the primary targets of the amended SEQR regulations concerns Type II actions. Type II actions are those that have been determined not to have a significant adverse environmental impact and do not require review under SEQR. The proposed changes to the SEQR Handbook add quite a number of actions to the list of Type II actions to conform to the amended regulations. For example, a project calling for the replacement, rehabilitation, or reconstruction of a structure or facility, in kind, on the same site, including upgrading buildings to meet building or fire codes, typically is considered a Type II action. Now, such a project for the purpose of meeting energy codes also is a Type II action.

The proposed SEQR Handbook adds the following as Type II actions:

  • Retrofitting an existing structure and its appurtenant areas to incorporate green infrastructure;
  • Installing telecommunication cables in existing highway or utility rights of way using trenchless burial or aerial placement on existing poles;
  • Installing solar energy arrays where such installation involves 25 acres or less of physical alteration on sites such as closed landfills and brownfield sites;
  • Installing solar energy arrays on an existing structure as long as the structure is not a specified historical place;
  • A government agency’s acquisition and dedication of 25 acres or less of land for parkland, or dedication of land for parkland that was previously acquired, or an agency’s acquisition of a conservation easement;
  • Sale and conveyance of real property by public auction pursuant to Article 11 of the Real Property Tax Law, i.e., when a municipality or state agency acquires land through foreclosure or other means where the land reverts to the agency due to a failure of the owner to remain current on property taxes; and
  • Construction and operation of an anaerobic digester (which utilizes the naturally occurring process of anaerobic digestion) within currently disturbed areas at an operating publicly owned landfill, provided the digester meets certain specific conditions.

The proposed SEQR Handbook also focuses on Type I actions, which are actions that are considered more likely to have significant adverse environmental impacts and must be reviewed further under SEQR. The proposed SEQR Handbook contains a number of changes to the list of Type I actions to be consistent with the amended regulations. For example, the threshold for triggering a Type I SEQR inquiry for actions involving the construction of new residential units has been lowered. Previously, that threshold for a city, town, or village having a population of less than 150,000 was 250 units to be connected to existing community or public water or sewer systems. The amended regulations lower that to 200 units. Similarly, the threshold has been lowered for a city, town, or village having a population of greater than 150,000 persons but less than one million. It previously had to involve 1,000 units; that has been changed to 500 units. The proposed changes to the SEQR Handbook take into account these lower thresholds.

There is another notable change regarding Type I actions in the proposed SEQR Handbook, which is based on the amended regulations. Before January 1, 2019, a lead agency could waive the requirement of filing an environmental assessment form for a Type I action. The amended regulations eliminated the ability of a lead agency to waive that requirement.  This arises from the fact that the scoping has been made mandatory by the amended regulations. Scoping is a process that develops a written document that outlines the topics and analyses of potential environmental impacts of an action that will be addressed in a draft environmental impact statement. Scoping narrows the issues and ensures that the draft environmental impact statement will be a concise, accurate, and complete document that is adequate for public review. The process for scoping is set out in 6 NYCRR § 617.8. The proposed changes to the SEQR Handbook make scoping mandatory for every draft environmental impact statement (except that mandatory scoping does not apply to supplemental environmental impact statements).

The deadline for public comments on the proposed SEQR Handbook expired on February 1, 2019 and the expectation is that the SEQR Handbook changes will be finalized soon.

In 2015 the Village of East Hampton enacted five local laws reducing the maximum allowable gross floor area for residences, reducing the maximum permitted coverage for all structures,  reducing the maximum allowable gross floor area for accessory buildings, amending the definition of “story” and amending the definition of “cellar”. The petitioner/plaintiffs (“petitioners”) own real property in the Village and commenced a hybrid Article 78 proceeding and Declaratory Judgment action entitled Bonacker Property, LLC v. Village of East Hampton Board of Trustees et al., Supreme Court, Suffolk County, Index No. 15-12506, September 2, 2016, challenging the enactment of the local laws. Petitioners sought to annul the Board of Trustee’s adoption of a negative declaration under the State Environmental Quality Review Act (“SEQRA”) and claimed that (i) the local laws were not in accordance with the Village Comprehensive Plan, (ii) the Board of Trustees improperly relied upon recommendations from the Planning and Zoning Committee, and (iii) the Board of Trustees failed to comply with SEQRA. The petition also sought declaratory relief. The Supreme Court denied the petition, dismissed the proceeding/action and declared the local laws constitutional and valid. The petitioners appealed.

The Appellate Division, Second Department upheld the Supreme Court’s determination in Matter of Bonacker Property, LLC et al, v. Village of East Hampton Board of Trustees, et al., dated January 23, 2019. The Court noted that New York State Village Law §7-722(11)(a) requires that where a village has adopted a comprehensive plan, the village’s zoning decisions must be in accordance with the plan. However, the Court went on to recognize the presumption of validity afforded to the legislative act of enacting zoning laws. The Court quoted Matter of Town of Bedford v. Village of Mount Kisco, 33 N.Y.2d 178, 186, stating “[e]ven if the validity of a provision is fairly debatable, the municipality’s judgment as to its necessity must control.”   Ultimately, the Court found the enactments limiting gross floor area and coverage “entirely consistent with the comprehensive plan.”

The Court also found that the Village Board of Trustees complied with the requirements of SEQRA stating the Board identified the relevant areas of environmental concern, took the requisite “hard look” at them and made a reasoned elaboration in its negative declaration. The Court stated, “[g]iven the nature of the proposed action here, which would have only beneficial environmental effect, and the focus of the assessment form, which is to identify negative environmental effects of the proposed action, the rapid review and completion of the environmental assessment form was not arbitrary or capricious.”

Moreover, the Court found that the record supported the Supreme Court’s determination that the Planning and Zoning Committee was advisory in nature, did not perform governmental functions and it was proper for the Board of Trustees to rely on the committee’s advice pertaining to the enactment of the local laws.

Ultimately, the Court upheld the Supreme Court’s determination with regard to the Article 78 claims however remanded the declaratory judgment claims back to the Supreme Court since the Supreme Court improperly employed the summary procedure applicable to an Article 78 proceeding to dispose causes of action to recover damages or seeking declaratory judgment. The Court noted, “where no party makes a request for a summary determination of the causes of action which seek to recover damages or declaratory relief, it is error for the Supreme Court to summarily dispose of those causes of action.” Thus, the Court remitted the matter back to the Supreme court for further proceedings on those causes of action for damages and declaratory judgment. Finally, the Court expressed no opinion as to the merits of those claims.

In Abbatiello v Town of North Hempstead, 164 A.D.3d 785 [2d Dept. 2018], the Second Department recently reversed Supreme Court, Nassau County and granted the petitioner’s CPLR Article 78 challenge to the Town of North Hempstead Board of Zoning Appeals (“Board”) denial of a use variance.  In finding that the house was a “legal nonconforming” 2-family residence, the Appellate Division ordered the Town to issue the requested  use variance.

A legal nonconforming use, commonly referred to as “grandfathered”, is a use of property which lawfully existed prior to the enactment of a zoning ordinance which now prohibits it.  The “legal nonconforming” use doctrine is a fact sensitive inquiry that protects property rights, which is directly at odds with a municipality’s comprehensive plan for an area.

The courts are routinely the venue used to protect legal nonconforming uses property rights.   In Abbatiello, when the petitioner purchased the property in 1977, he believed that the house was a legal two-family residence.  Since he purchased the property, the petitioner has been renting out the two units, and he has obtained various permits from the Town allowing him to do so.  In October 2013, the petitioner applied for a variance to permit him to continue using the property as a two-family dwelling.  The Town rejected the application, and the petitioner appealed to the Board, which ultimately denied the petitioner.  The Supreme Court affirmed the Board’s denial.

In reversing the Supreme Court, the Appellate Division found that the property owner was entitled to the use variance permitting him to use the property as two-family dwelling for rental purposes.  The owner presented evidence, including affidavits from neighbors and others who had lived in community for many years, which was sufficient to establish that property was legal two-family residence prior to amendments to the town zoning code, and there was no evidence presented to demonstrated that property had been converted into two-family dwelling after amendments.  As the Court noted, critical to establishing a legal nonconforming use, a property owner must demonstrate that the allegedly preexisting use was legal prior to the enactment of the zoning ordinance that purportedly rendered it nonconforming.  Id.

If you are facing zoning challenges to a use that is “grandfathered” you may be able to use the “legal nonconforming” doctrine to protect your property right(s).

In Matter of HV Donuts, LLC v. Town of LaGrange Zoning Board of Appeals, the Second Department recently held that a property owner’s nonconforming use rights continue despite a temporary business interruption caused by a fuel truck accident and gasoline spill.

The property owner, Leemilt’s Petroleum, Inc. (the “Owner”), leased the subject property (the “Premises”) to a tenant who operated a gas station and a convenience store at the Premises. Both the gas station and the convenience store were legal nonconforming uses under the Town’s zoning regulations.

Under Section 240-29 of the Code of the Town of LaGrange (hereinafter the “Code”), a “nonconforming use . . . is one which existed lawfully” prior to the date that the Code or an amendment to the Code was enacted, which results in the failure of that prior use to conform to the Code (see Code § 240-29[B]). However, in order for such use to maintain its status as a nonconforming use, it must not be discontinued. The Code provides that a nonconforming use is deemed discontinued when “the nonconformity has ceased for a period of one year or more” (see Code § 240-29[F][4]).

The case arose out of an accident in June 2013, when a fuel delivery tanker hit a light pole, spilling approximately 3,000 gallons of gasoline on the Premises. This forced the gas station and the convenience store to temporarily cease business operations and begin remedial efforts. After the Owner completed the restoration work in October 2014, a leak was discovered in the gasoline pump system piping when it was tested in anticipation of reopening. This required additional remediation and further delayed the reopening.

Eventually, the Owner completed this additional work and thereafter sought approval from the Town’s building inspector to reopen the gas station. The Owner also applied for a building permit from the Town’s building inspector “to upgrade the convenience store building, which had not been damaged by the spill and remediation efforts.” Section 240-29(E) of the Code permits the “re-establishment of nonconforming uses after casualties,” under certain time conditions. Section 240-29(E) of the Code provides the following:

“If any nonconforming building or structure or any building or structure containing a nonconforming use shall be damaged or destroyed by fire or other casualty, such building or structure . . . may be restored and any such nonconforming use resumed to the extent that such building, structure or use existed at the time of the casualty, provided that a building permit for such restoration is obtained within a period of one year from such casualty and is diligently prosecuted to completion.”

Pursuant to that provision, the building inspector granted the Owner’s request, giving it one year from September 22, 2015—the date of the building inspector’s determination—to re-establish its nonconforming use.

A Dunkin Donuts franchise (the “Petitioner”) located across the street from the Premises appealed the building inspector’s determination to the Town’s Zoning Board of Appeals (the “ZBA”). The Petitioner contended that the nonconforming use had been lost and could not be re-established, citing Sections 240-29(E) and (F) of the Code.

The ZBA determined that “there was ‘more to maintaining a gasoline filling station than pumping gas,’” and that the “remediation of the petroleum spills amounted to a continuation of the nonconforming use.” Thus, there was no “discontinuation” within the meaning of Code Section 240-29(F)(4). Furthermore, the ZBA concluded that the building permit requirement of Code Section 240-29(E) did not apply to the convenience store because neither casualty affected the convenience store.

Ultimately, the Supreme Court rejected the Petitioner’s Article 78 challenge, holding that the ZBA’s determinations were rationally based and entitled to deference. The Second Department affirmed. Therefore, under HV Donuts, a nonconforming use may not be lost by remedial and restoration activities that temporarily shut down site operations, provided these activities are diligently pursued and completed.

The Long Island Pine Barrens Maritime Reserve Act, Environmental Conservation Law, Article 57 (the “Act”), was adopted in 1993 for the purpose of protecting approximately 102,500 acres of the Long Island Pine Barrens located within the towns of Brookhaven, Riverhead and Southampton.  The Act defines the boundaries of the Central Pine Barrens and divides it into two geographic areas, one a 55,000 acre Core Preservation Area (“CPA”), where development is generally prohibited, and the other a 47,500 acre area designated as the Compatible Growth Area (“CGA”), where development is permitted, but only in compliance with certain standards and guidelines designed to preserve the ecology and hydrology of the Central Pine Barrens.

The Act also mandated the creation and implementation of the Central Pine Barrens Comprehensive Land Use Plan (the “Plan”), and created the Central Pine Barrens Joint Planning and Policy Commission (the “Commission”).  The Commission oversees the implementation of the Plan and is charged with joint land use review, regulation, permitting, and enforcement along with local municipalities, as well as the operation of a transferable development rights and conservation easement program.  See, prior blog posts, Pine Barren Credits – There’s Money In Those Trees and Town of Babylon Imposes Moratorium on Use of Pine Barrens Credits to Increase Development Density

Among the Commission’s responsibilities is the review of applications for large-scale development that meets the threshold constituting a Development of Regional Significance.  Pursuant to the Plan, the following developments are defined as Developments of Regional Significance:

  • A commercial, industrial or office development project exceeding 300,000 square feet of gross floor area, or an addition to an existing commercial, industrial or office development where the addition is 100,000 square feet or more and that addition causes the total square footage to exceed 300,000 square feet.
  • A multifamily residential development project consisting of three hundred (300) or more units.
  • A single family, detached residential development project consisting of two hundred (200) or more units.
  • A development project resulting in a traffic impact which would reduce service by two (2) levels below existing conditions or to a level of service of D or below.

In order for the Commission to approve a Development of Regional Significance, the development must comply with all of the standards and guidelines set forth in Volume 1, Chapter 5, of the Plan.  The standards and guidelines are intended to minimize certain areas of environmental concern, such as nitrate and nitrogen discharge, wellhead protection, protection of wetlands and surface waters, stormwater runoff and recharge, and preservation of natural vegetation and plant habitat.  Developments that do not comply with the standards and guidelines may apply to the Commission for a hardship waiver, which can only be granted upon a showing of an extraordinary hardship or compelling public need.

Applications for Developments of Regional Significance are made to the Commission upon submission of a Transmittal Letter, Owners Affidavit, General Project Data Sheet and Standards and Guidelines for Land Use.  The application must also be accompanied by copies of prior approvals, the final approved map or site plan, other maps or data that document and support the information presented, an Environmental Assessment Form or Findings Statement and supporting documentation necessary to comply with the State Environmental Quality Review Act (“SEQRA”) and a Suffolk County Planning Commission determination (if applicable).

Within 60 days of the submission of a complete application, the Commission will hold a public hearing on the application, at which time the applicant and members of the public are provided an opportunity to comment on the development proposal.  The Commission must render a decision within 120 days after declaring an application complete, unless the time is extended by mutual agreement, otherwise the proposal is deemed approved by the Commission.

Developers that propose large-scale developments on lands within the Central Pine Barrens are wise to evaluate whether their proposals constitute Developments of Regional Significance early in the process because the Commission’s discretionary review process creates additional entitlement risk and can result in a longer timeline for securing project approval.

In Joy Builders, Inc. v. Town of Clarkstown, 2018 N.Y. Slip Op. 07110, 165 A.D.3d 1084 (2d Dept 2018), a developer (“Developer”), in connection with the development of two subdivisions, challenged a provision of the Town Code of the Town of Clarkstown (“Town”) which authorized the Town to withhold the issuance of building permits for a subdivision until the applicant/owner has completed the requisite infrastructure and improvements and dedicated the same to the Town.  The Supreme Court, Rockland County, denied the Developer’s motion for summary judgment and the Developer appealed.  The Appellate Division, Second Department, reversed and declared the Town Code provision null void and struck the subdivision conditions affected by that provision.

With respect to the Developer’s projects, the Town Planning Board had approved two subdivisions of 22-lots and 55-lots, respectively.  The approvals contained a condition requiring the Developer to build certain infrastructure and post performance bonds for each project.  Town Code Section 254-18B authorized the Town to withhold the issuance of building permits for 10% of the lots of each subdivision until the Developer completed and dedicated the infrastructure and improvements.  The basis of the “holdback” was to ensure that applicants/owners complete the requisite work.  During construction, the Town relied upon the holdback provision and withheld the issuance of buildings permits for three lots in one subdivision and six in the other.  The Developer, then, commenced this action challenging the Town’s withholding and seeking a declaration that Section 254-18B was null and void.

The Appellate Division noted that towns and municipalities lack the inherent power to enact zoning or land use regulations – rather, they are creatures of statute.  As such, towns may only engage the powers conferred by the State Legislature.  The pertinent statute, Town Law Section 277(9) authorizes the Town to obtain enumerated forms of security in order to ensure the full cost of infrastructure and improvements in the event a developer abandons a project.  However, withholding the issuance of building permits is not among these.  The Court determined that Town Law Section 277 does not expressly authorized the holdback and no such authority can be implied.  Therefore, Town Code Section 254-18B was inconsistent with the Town Law and the Town does not have the power to withhold building permits to provide financial security for the completion of work.

The Court declared Section 254-18B void and struck the conditions of withholding. The Court’s ruling reaffirms strict adherence to the enumerated powers for municipalities in the land use and zoning context.

Long Island’s potable water supply comes from one place: aquifers. And as the population of Long Island continues to grow steadily upward, this vital subterranean resource faces both a growing demand and a growing threat of pollution from human-driven sources. Consequently, the issues of groundwater quality and groundwater protection have been rising to the top of the list of concerns for many Long Island communities for some time.

At a recent meeting of the Shelter Island Town Board, the problem of groundwater pollution was once again up for discussion. Shelter Island, unlike some other Long Island communities, does not have public water. It also does not have public sewers. Accordingly, its residents rely on private wells and septic systems for the water supply and wastewater disposal. This reality makes Shelter Island residents particularly vulnerable to issues that arise when pollutants from septic systems—namely, nitrogen—find their way into the groundwater.

In 2017, Shelter Island’s Town Board created a rebate program to incentivize owners of residential property to voluntarily replace old septic systems with new low-nitrogen septic systems. Intended to supplement Suffolk County’s septic system grant program, the Town rebate is funded by the Town’s Community Preservation Fund and offers residential-property owners reimbursement of up to $15,000 for eligible septic system upgrades. Other East End towns, such as the Town of Southampton, have implemented similar programs.

Perhaps dissatisfied with the rate of response to its rebate program, the Town is now considering a new idea to speed up the installation of low-nitrogen septic systems. During their work session on December 11, 2018, Town Board members discussed the possibility of legislation that would require a low-nitrogen septic system to be installed on any improved residential real property in the Town that changes owners and does not already have a low-nitrogen system in place. The Board members also discussed the possibility of extending the Town’s rebate program to help fund those projects.

As of yet, there is no actual bill before the Town Board for its consideration, and as was made clear during its discussion on December 11th, the proposed legislation raises a number of questions that will need to be addressed:

  • Would such a mandate be lawful?
    • Some could argue that the legislation would impose an illegal restriction on a property owner’s ability to convey title to their property.
  • What title transfers would trigger the obligation to install a low-nitrogen septic system?
    • For example, in instances of inheritance, the law could impose an unexpected and potentially unaffordable financial obligation on family members.
    • Would a long-term lease trigger the need for an upgrade?
  • In the event of a sale, who is obligated to fund and perform the system upgrade as between the buyer and the seller?
    • The requirement to install a new septic system in conjunction with a sale will likely become a bargaining point during contract negotiations.
  • Must an upgrade be completed before or after title changes hands?
    • If before, the law could result in the delay of certain transfers while the responsible party pursues permits, grants/rebates, and completion of the project.
    • If after, how will the Town ensure that the upgrade is completed, and what will it do if it is not?
  • How will the Town ensure that transferors and transferees are aware of the law and its requirements in advance of the transfer of title?
    • What happens when unknowing parties conclude a transaction that would have required a new system to be installed?

Whatever the answer to these questions will be, the proposed legislation, if enacted, would represent a proactive and unique approach to combatting groundwater pollution on Long Island. This office will be monitoring the progress of the law if and when the legislation makes its way before the Board.

The Town of North Hempstead decided to ban recreational marijuana even before it becomes legal in New York. At its January 8, 2019 meeting, the Town Board unanimously adopted Local Law 1-2019, amending the Town zoning code, to prohibit the retail sale, distribution or offer of consumption of marijuana in all use districts.

The local law provides that no building, structure or premises approved or used as a medical marijuana dispensary may be used as a marijuana retail store. The local law also provides that no other building, structure or premises within any use district may be used for the sale, distribution or offer for consumption of marijuana or marijuana products in a retail setting or environment for non-medical use.

In a press release following the adoption of the local law, Town Supervisor Judi Bosworth noted that the Town Board members “certainly understand and support the need for medical marijuana dispensaries and their place in alleviating pain and discomfort in patients, we feel that this law prohibiting the sale of recreational marijuana addresses the concerns brought to us by many residents.”

This is not the first time the Town of North Hempstead used its zoning power to enact a local law controlling marijuana within its borders. In December 2018, the Town Board unanimously approved Local Law 12-2018, which restricts the location of medical marijuana dispensaries. Such facilities are prohibited from being located within 1,000 feet of a school, park, child care center or house of worship. These dispensaries also cannot be located within 500 feet of a Town residential district. The local law limits the number of dispensaries in the Town to two.

We shall see if other municipalities decide to use zoning to ban or control marijuana use within their borders. Stayed tuned for more developments.

In Peyton v. New York City Bd. of Standards and Appeals, (2018 N.Y. 06870, 166 A.D.3d 120 (1st Dept 2018), Petitioners-community residents (“Petitioners”) commenced a proceeding to challenge the City of New York (“City”) Board of Standards and Appeals’s (“Board”) resolution upholding the City Department of Buildings’s (“DOB”) decision to grant a permit for the construction of a twenty-story nursing home (“Project”) on the Upper West Side.  The main issue is the City’s “open space” mandate (“Open Space Law”) and whether the Project provides enough open space to suffice the requirement.  The Court rulings and the Project’s viability hinged entirely upon how to calculate compliance with the Open Space Law.

At the outset, it is crucial to note the difference between a building-by-building calculation for open space and an open space calculation in the aggregate.  The former calculates the required open space with respect to each individual building within a zoning lot, whereas the latter considers the open space requirement for all buildings existing on an entire zoning lot together.  This distinction is at the heart of the dispute.

Procedurally, as relevant herein, the DOB made its open space calculation for the Project based upon a “building-by-building” methodology and decided to issue the construction permit.  One or more of the Petitioners appealed the DOB’s decision to the Board.  The Board resolved to uphold the issuance of the permit and the calculation methodology, which resolution the Petitioners challenged in this proceeding.  The Supreme Court, New York County, denied the petition and affirmed the Board’s resolution.  Petitioners appealed and the Appellate Division, First Department, reversed.

The Project site is within a “superblock” zoning lot known as “Park West Village” comprising 308,475 square feet, or 7 acres (“Zoning Lot”) (between 97th and 100th Streets and Columbus and Amsterdam Avenues; the complex extends to Central Park, but that portion is not at issue).  The complex on the Zoning Lot was built in the 1950s and 1960s as part of a federally subsidized middle-income urban renewal project and includes residential buildings, a school, a church, a public library, a health center and commercial buildings.  There are four residential buildings: three original sixteen-story buildings and a more recently constructed twenty-nine-story mixed commercial and residential building (“Fourth Building”).

A forty-year deed restriction had prohibited construction on the Zoning Lot through 2006 and the present owner (“Owner”) acquired the land shortly before the prohibition expired.  Approving and constructing the Fourth Building was the center of controversy between Petitioners, Owner, the City and others, which controversy also revolved around the City’s open space requirements.

Since its inception in 1961, and despite amendments in 1977, the Open Space Law had no particular design or mode to address zoning lots improved with multiple buildings.  With respect to the Fourth Building, there was a disagreement over whether its rooftop open space could count towards the open space requirement for the entire Zoning Lot.  The Fourth Building’s rooftop space included a 42,500 square feet garden, with a mosaic tile saltwater pool, sundeck and lawn.  However, the rooftop garden provided access only to residents of the Fourth Building and did not allow access to occupants of other buildings within the Zoning Lot.  If the Fourth Building’s rooftop garden was included in the open space calculation, then the project met the requirements; if not, then the project would fail.

The DOB performed a building-by-building analysis for the Zoning Lot, included the rooftop garden in its calculation and issued a building permit in 2007.  Residents of Park West Village and others challenged the DOB’s approval based upon the fact that the Fourth Building’s rooftop garden did not provide access to all residents of the Zoning Lot and, thus, could not be included in the open space calculation.

In 2009, the Board resolved to affirm the DOB’s decision (“2009 Resolution”), wherein the Board noted that the Open Space Law’s language requires open space with respect to a “building,” not the zoning lot as a whole; therefore, open space among multiple buildings need not be common, centralized space shared by all occupants of the zoning lot, and the building-by-building methodology for calculating open space suffices.  The 2009 Resolution utilized the building-by-building methodology for the first time and stated: “as each of the buildings is allocated the amount of space that is in excess of that which would be required…if they were located on separate zoning lots, it cannot be seen how those residents would be deprived of an equitable share of open space by the proposed building.”  The Board’s resolution was challenged, but the challenge was settled out of court and the Fourth Building was completed.

Two years later, in February 2011, the City amended the Open Space Law (“2011 Amendments”).  The definition of “open space” has always been: “that part of a zoning lot, including courts or yards, which is open and unobstructed from its lowest level to the sky and is accessible to and usable by all persons occupying a dwelling unit or a rooming unit on the zoning lot.”  The 2011 Amendments modified several other provisions of the Open Space Law (e.g. “open space ratio,” “minimum open space,” etc.) by substituting the words “zoning lot” and “all zoning lots” for the words “building” and “any buildings,” focusing the law and its analysis upon the actual zoning lots – as opposed to individual buildings.

After the City enacted the 2011 Amendments, the Owner sought to utilize a former parking lot within the Zoning Lot, which Park West Village residents previously used.  The Owner entered into an exchange agreement with the Project’s developer (“Developer”) to swap the parking lot for another parcel of land located north of the Zoning Lot and owned by the Developer (“New Parcel”).  The New Parcel was large enough for the Owner to construct another luxury apartment building.  The Owner agreed to pay the Developer $35,000,000 and the Developer promised to complete the project on the former parking lot.  However, this exchange was contingent upon, among other things, the Developer obtaining a permit from the DOB for construction of the Project.

In March 2011, the Developer made its applications to the DOB, which expressly noted that the open space within the Project would be accessible to all persons occupying a dwelling unit on the Zoning Lot.  Developer’s open space calculations for the Project included all of the open space on the zoning lot, including the Fourth Building’s rooftop garden.  Petitioners objected and argued that, based upon the 2011 Amendments to the Open Space Law, the Fourth Building’s rooftop garden no longer counted towards the open space calculation for the Zoning Lot (due to restricted access) and that the building-by-building methodology was invalid.

The DOB disagreed and granted a building permit for the Project.  Petitioners appealed to the Board and the Board resolved to affirm (“2011 Resolution”), relying upon the 2009 Resolution: “in the case of a multi-building zoning lot, the open space definition could be read to allow some open space to be reserved for the residents of a single building as long as the residents of each building on the zoning lot have access to at least the amount of space that would be required…if each building were on separate zoning lots.”  The Board also noted that the 2011 Amendments did not dictate a change in the DOB’s or Board’s building-by-building methodology or open space analysis.

Petitioners challenged the Board’s 2011 Resolution by commencing this proceeding and argued that, even though the Fourth Building’s rooftop garden was arguably within the meaning of open space when it was constructed in 2009, it presently was not open space by virtue of the 2011 Amendments.  These changes to the Open Space Law eliminated any ambiguity as to how to calculate open space and the Fourth Building’s rooftop garden cannot be included because the area is not available to all occupants of the Zoning Lot.

It was undisputed that the Project sufficed the open space requirement with the inclusion of the Fourth Building’s rooftop garden.  It was also undisputed that the Project failed to provide adequate open space without the rooftop garden.  The Board’s main argument was that the City’s Open Space Law is ambiguous and, therefore, the DOB and the Board have discretion to construe it.  In particular, the Board argued that the definition of open space (with accessibility and usability for all residents within a zoning lot) is irreconcilable with the definition of “zoning lot,” which contemplated multiple buildings on a single lot.  Therefore, the Open Space Law was ambiguous and the DOB and the Board were free to interpret and reconcile this ambiguity, i.e. by utilizing the building-by-building methodology.  The Supreme Court denied Petitioner’s petition and dismissed the proceeding. Petitioners appealed and the Appellate Division reversed and annulled the 2011 Resolution.

On appeal, the Appellate Division disagreed with the Board and adopted the Petitioners’ argument that the 2011 Amendments removed the contextual basis upon which the Board relied.  Judicial deference should be given to an agency’s interpretation of a statute it is charged with implementing, unless the interpretation is unreasonable or irrational.  However, where the question is one of pure statutory interpretation, an agency’s interpretation is accorded much less weight and Courts are free to ascertain the proper interpretation from the statutory language and legislative intent.  Here, resolving the dispute concerning the 2011 Amendments does not implicate the expertise of the DOB or the Board as the implementing administrative agencies; instead, the resolution is one of pure statutory analysis and does not require deference to the agencies.

The Appellate Division held that the definition of “open space” is clear and unambiguous, requiring open space to be accessible to all residents of any residential building on the zoning lot – not only the building containing the open space in question.  The Court noted this clarity is further bolstered by the 2011 Amendments, which eliminated all references to “building” and replaced the term with “zoning lot” in the relevant Open Space Law provisions.  Therefore, any space, including a rooftop, that is to be considered “open space” for purpose of satisfying the requirement must be accessible and usable by all residents of the zoning lot.  In addition, the Court expressly invalidated the building-by-building methodology: “Lest there be any doubt, we find that the 2011 [A]mendments now preclude use of [this] methodology, which has been an exception to this clear statutory import.”

The Court also noted that absence of legislative history did not evidence an intent to accept the building-by-building methodology.  Rather, the 2011 Amendments replacement of the word “building” was an unmistakable rejection of the use of this formula.  Notably, one of the four Judges dissented, which may lead the case to the Court of Appeals.